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To the Honorable the Senate of the United States. 



/ 



Difficnldes having- arisen upon the construction of the ircaiy between 
the Uniied States and the Cherokee Nation of the 29ih December, 
lS35,the President of the United Stales, in June, 1^46, appointed 
three commissioners to examine the whole subject and negotiate a new 
treaty, making a final seiilement of all matters in controversy. There 
were some points upon which the commissioners and the Cherokee del- 
egations could not agree. But, as the peace of the nation, then rent 
by hostile factions, would, as it was hoped, be restored by other provis- 
ions of the treaty, (a hope since fully realized,) the Cherokee delegation 
would not withhold their assent from it on account of these differences, 
and agreed to submit them to the arbitrament and award of the Senate 
of the United Slates. 

The case will, doubtless, receive that full examination and impartial 
decision to which it is entitled, both from the great importance to the 
Cherokees of the interests involved, as well rs from the consideration 
that your honorable body is at once a party interested, and the judge, 
and from your decision there is no appeal. Nothing could have in- 
duced the Cherokees to have submitted questions of such deep impor- 
tance to your decision, but a thorough conviction of the justice of their 
cause, and an equal confidence in the sense of honorable justice of the 
umpire selected. The following synopsis of the history and provisions 
of the treaties of 1835 and 1846, will be necessary to a proper under- 
standing of the questions submitted, which are — 

1. Shall the expenses of the removal and subsistence of the Chero- 
kees be charged to the treaty fund; and, if so, shall that fund be charged 
with any greater sum than $20 per capita for removal, and $33.33 for 
one year's subsistence ? • 

2. Shall the Cherokees be allowed interest on the balance found to 
be due to them? 

For many years prior to the date of the treaty of 29th December, 
1835, the State of Georgia had been importunate for the removal of the. 
Cherolcees from its borders. A regularly constituted government had 
been organized in the Cherokee Nation, with a written constitution — 
legislative, executive and judiciary — and the old government of the 
chiefs had been abolished. This the regular and only government had 
constantly refused to cede their lands to the United States. In this state 
of things a portion of the Cherokee people, admitted to be less than one 
twentieth part of the population of the nation — men without official au- 
thority of any sort, still less without any authority to make a treaty — 
negotiated and signed the treaty of New Echota on the 29th December, 
1835. The strong arm of the Government of the United States was 
called in to execute it, and to expel the Cherokees from their country. 

3. it G. 8. Gideon, Printers. 



These U\c(< ;iie atlverieil to, not with (he view of ahsolviog tFie Chero- 
kees from ilje obhiiaUons of thisirealy, as it lias been falsely called, hut 
as entitled to consideration in case of any doiil)l existing as to the inter- 
prelalion of any of its provisions, as made without authority, by a small 
and ignorant portion of the Cherokee people, having no official station 
— no authority to negotiate, and not even that which might be claimed 
if the Cherokees had been in a state of nature — the right and power of 
a majoriiy. 

The constituted authorities of the Cherokee Nation proposed to sub- 
mit to the Senate of the United States to fix a sum which should be 
paid to tiiem for their lands east of the Mississippi river. The Chero- 
kees had, at the same time, claims upon the United States for spolia- 
tions committed upon them for reservations, &c. These were not sub- 
mitted to the arbitrament of the Senate; and it is clear that (hey could 
noi have been, because (heir amount was not known, and it was im- 
possible that they could have been known, nor even a conjecture as to 
their amount, as they were individual claims, and no hst of them ever 
had been made, much less of their an^ount,and the evidence in support 
of them. The resolution of the Senate shows conchisively that these 
claims did not enter into the consideration of the Senate in making their 
award, but that it was the value of the Cherokee lands, and that alone 
of which the award fixed the value. 

The Journal of the Senate of the 2d March, 1S35, after reciting the 
submission of the cpiestion of the value of the Cherokee lands to the 
award of the Senate, contains the following resolution : Resolved^ 
That the President of the United States be, and he is hereby advised 
and requested, as soon as conveniently may be, to negotiate with the 
Cherokee Indians for a cession of all their lands now occupied and 
claimed by (hem east of the Mississippi river, and (hat he agree to pay 
them in consideration therefor any sum which, in his opinion, is just, 
not exceeding the smn of five millions of dollars. '' The object to be 
treated for was a cession of their lands." He was to pay them *' in 
consideration therefor" — five millions — for what? why for their lands — 
not a word said about other and pre-existing claims being surrendered 
as part of the condition on the part of the Cherokees. Language can- 
not be more explicit to show that it was the Cherokee lands, and no- 
thing else, which was valued by the Senate. Between individuals, no 
respectable lawyer would contend that any thing else was intended to 
be relinquished by the Cherokees, or any thing else submitted to the 
arbitrament of the Senate. 

The first article of (he (reaty, made in pursuance of this award, be- 
sides the cession of the lands, also recites the Cherokee claims for spo- 
liations ; but with a proviso that, if it was not the purpose of (he 
Senate, in its award, (o include those claims, tliat the additional sum 
of jifSOOjOOO should be paid on that account. The Senate decided that 
it was not ibeir purpose, in the award, to include claims for spoliations, 
and appropriated, instead of ,"^300 ,000 for that specific object, (he sum 
of ^600,(MK) for spoliahons, and also for (he expenses of removal, re- 



V 3 

% «ervj»lions . and other claims. This award was made on iUo 2d March, 
"^ 1835, and the ^ubsequcMt interpretation of it was given on the 23d 
Cj May , IS36— fourteen months afterwards, when nearly every member 
v" who belono;ed to the body when the award was made, was also a mem- 
v^ ber when it was declared what was its true intent and meaninij — and 
they must have known what that meaning was. Tliesuin (if >|5600,00(), 
it. was supposed, would cover all charges for spoliations, rf^iiioval, re- 
servations, &c., as is shown by (he fact that provision is made for the 
disposal of any surplus which might remain. 

The 17th article of the treaty of 1835 stipulates, "Tliai all the 
claims arising under or provided for in ihe different articles of this treaty, 
shall be adjudicated and examined by such commissioners as shall be 
appointed by the President of the United States for that purpose, and 
their decision shall be final; and on their certificate, the amount due the 
several claimants shall be paid bij the United States.^' The obvious 
and unambiguous meaning of these words is, that they shall be paid 
by the United States independent of the treaty fund. If it had been 
intended that they should have been paid out of that fund, it should 
have been, and would have been, so expressed. 

The 12th article of the treaty stipulates that, ''Claims for improve- 
ments and per capita — shall be paid as soon as an appropriation is made 
for this treaty." How could this have been done, if the treaty fund, 
which was to he divided per capita, was to be subject to these various 
charges, which could not be ascertained but by the examination of a 
board of commissioners, which must be a work of time, as it lias proven 
to be. 

This estimate was foimd to be inaccurate, and in June, 1838, the 
further sum of j$l ,047,000 was appropriated for the same objects; the 
officers of our Government, up to that time, never once having assumed 
the ground that these charges were to be paid out of the Indian fund, 
or expressed a doubt that they were to be paid by the United States. 
Never until these two additional appropriations were exhausted was the 
treaty fund of the Cherokees touched for any of these purposes, and there 
was no pretence of justice that it sliould be. These claims for spoliations 
and reservations were distinct and pre-existing claims, which the United 
Stales \vere bound to pay if the treaty of New Echota had never been 
made. The fact of the purchase of the Cherokee lands at a price as- 
sessed by the Senate, and in which assessment these claims did not en- 
ter into the calculation, did not absolve the Government from the obli- 
gation. The aggregate of the claims for which these addition;il appro- 
priations were made amounts lo three or four millions, leaving a bal- 
ance, which the officers of the Government, having no funds to meet, 
and imwilling to ask Congress for an appropriation, adopted the i^horter 
and more convenient process of taking it from the treaty fund, thereby 
exhausting that fund entirely. For, if this construction of the treaty is 
adopted, there will not remain !^+;lOO,000 lo distribute per capiia amongst 
the Cherokees who were the joint owners of a rich, extensive, and val- 
uable territory, now constituiiug part of three States, besides having ac- 



complislieil ilic ^neaj ohjecl so long desired, of the rejiioval of the Che- 
rokees to the West. NVImlever balance may be due U)e Cherokees, 
the niai^niiiule of the aitiomit ought not, and will not, be considered, 
but the justice of tiie claim. If it was just that these charges should 
be paid by the United Siatt^s when it was supposed they oidy amount- 
ed to sCtlOjOOO, and two years afterwards so considered, when .>5;l,047,- 
OUO more were required, it is etjually just that the balance should be 
paid in the same way. 'I'he magnitude of the demand does not increase 
or diminish the force of the ol)ligation to pay it. 

The loregoing remarks apply to all charges made upon the treaty 
fund for claims for spoliations; although this question is not submitted 
to your arbitrament by the I2ih article of the treaty, it is by the 13ih 
article. IJut it was considereil important to show that the treaty itself 
does not recite any thing else as relinquished by the Cherokees but their 
lands, and the cpiesiion as to spoliation claims is submitted to the Sen- 
ate for its interprciaiion of its own award; no pretence was set up that 
any thing else but spoliations was included. The Senate decided that 
even they were not. 

The question of (he expenses of removal and subsistence stands on 
much higher grounds. The first article'of the treaty of 29th December, 
1S35, stipulates on the part of the United States to pay the Cherokees 
five millions of dollars for their lands. The Sth article is in the follow- 
ing words : " I'he United Slates also agree and stipulate to remove the 
Cherokees to their new homes, and to subsist them after tlieir arrival 
there, ;md that a suHicient number of steamboats and baggage wagons 
shall be pmchased to remove them comfortai)ly, and so as not to en- 
danger their health, ant! that a physician well supplied with medicines 
shall accompany each detachment of emigrants. Such persons and 
families as, in the opinion of the emigrating agent, shall be capable of 
removing and subsisting themselves, shall be permitted to do so, and 
shall be allowed in full of all claims for the same, ,Vv20 for each mem- 
ber of their family, and in li(Mi of their one year's rations, they shall be 
paid the sum of ^'d'i and 33 cents. 

What is the plain and obvious meaning of the first and eighth clauses 
taken together? The first gives five millions for their lands ; the 
eighth also stipulates to remove them. What is the meaning of the 
word ••■' also,^^ if it is not that this provision is in addition to the price 
of their lands? Was any thing more just? The Cherokees did not desire 
to remove. They were forced to do so. The price given for their 
liinds was only its real value as assessed by the Senate. Was any 
thing more just than that the expenses of this removal, not voluntary, 
l)ut forced, shoidd be paid by the United Slates, and not by the Chero- 
kees; the piice of whose lands would thus be reduced more than two 
millions of dollars, and by other charges equally unjust, entirely exhaust- 
ed? Why this stipulation of tlie sum to be allowed to those who re- 
moved themselves, if it was not considered that the Government of the 
United Slates was resfionsible for those charges? If that was the case, 
the precaution was prudent and proper. But, if to be paid out of the 
Cherokee fund, it should have been left to themselves. 



If it, luicl been so intended, is it not nianiresl that llie form of the ar- 
ticle would have been dillerent, and tlial, after providing that wagons, 
boats, etc., sliould be provided, it would have been added, that the 
cosis and charges on these accounts should be paid out of the treaty 
fund; and (here is no such provision. The words used are the strongest 
which could have been employed to show that the United Slates and 
not the treaty fund was to pay these charges; to remove and subsist, not 
to furnish the means of transportation, and to provide subsistence. But 
"remove them to their homes, and subsist them for one year." Such 
it is confidently asserted was not the intention of either of the parties to 
the treaty, and it never was so construed by any officer of the Govern- 
ment until after the appropriations for these purposes were all exhausted. 
As late as the ISth of May, 1S3S, Mr. Poinsett, then Secretary of War, 
and with the approval of the President, in reply to a communication 
from the Cherokee delegation, in which they had proposed certain 
terms to him for the settlement of all difficulties, uses the followins: 
language: 

" If it be desired by the Cherokee delegation that their own agents 
should lake the charge of their emigration, their wishes will be com- 
plied with ; with regard to their expense of this operation, (emigration,) 
which you ask may be defrayed by the United States^ in the opinion 
of the undersigned, the request ought to be granted, and an application 
for such sum as may be required for this purpose will be made to Con- 
gress." Such an application was made, and a resolution adopted by 
the House of Representatives, inquiring of the Secretary of War; how 
much would be required. 

Mr. Poinsett replies to this resolution on the 25lh of May, in a letter, 
from which the following is an extract : 

" The payment of the expenses of removing the remain- 
ing Cherokees, estimated at 15,846; at ;|^30 a head - $475,000 
Amount applicable to that purpose . . . . 39, SOU 



Balance to be provided for $445,900" 

What does he mean by amount applicable for that purpose, (the re- 
moval ?) 

Why. the balance of .'fiCOOjOOO, not the treaty fund, for that was 
then untouched. If Mr. Poinsett had considered the treaty fund of 
$5,000,000 properly subject to these charges, he would not have asked for 
more. He would not have stated t/ie bahmce applicMble to that pur- 
pose, at $;39j000, when there were four millions and a half untouched 
of the treaty fund. If he had entertained any doubts upon the sub- 
ject, he would have stated those doubts, and submitted the question to 
the consideration of Congress. 

The second section of the act of Congress, which was passed in pur- 
suance of the recommendation of the Secretary of War, on the 12ih of 
June, 1838, is in the following words : 

'^ Be it further enacted, That the sum of one million and forty-seven 
thousand and sixty-seven dollars be appropriated, out of any money in 



tlie Treasury not oLiierwise appropriated, in full for all objects specified 
in (he third article of the supplonieniary articles of the treaiy of eighteen 
hundred and ihirty-five, between the United Stales and the Cherokee 
Indians, and for the further object of aiding in the subsistence of the 
Indians for one year after their removal west : Provided , that no part 
of the said sum of money shall be deducted from the five millions stipu- 
lated to be paid to said tribe of Indians by said treaty." 

The terms of (his act are a clear admission that the treaty fund of five 
millions was not subject to the payment of any of the charges specified 
in the 3d suppleinental article of llie treaty. What has since made that 
fimd so liable? No subsequent treaty, nor other act of the Cherokees ; 
nor can any other reason be assigned, but that this appropriation was 
found insulTicient, and was made so by the improvident contracts as it 
is alleged of the Government of the United Slates. 

Wliat was the duty of the Government in the disbursement of this 
appropriation of $1,047,067? \\hy, clearly, to use it first for the re- 
moval of the Cherokees economically and prudently, and appropriate 
the balance, if any, to the payment of the other classes of claims speci- 
fied in the treaty ; and if insufficient to pay them, to divide it pro rata. 
But there was no more right to take the funds of the indigent portion of 
the Cherokees, who hud nothing but their interest in the lands, than to 
take any other funds in possession of the Government. Instead of di- 
viding the money approjjriated for tlie treaty of 1S35 per capita, as it is 
expressly stipulated in the 12ih article, it lias been exhausted in paying 
claims for which it was not liable, and out of five millions less than 
100,000 dollars only remain to be distributed. General Jackson, on 
the IGih March, 1835, addressed a letter to (he Cherokee people say- 
ing, that he woidd in a short time appoint commissioners to treat with 
them for a cession of their lands. His letter is characterized by the 
utmost apparent sincerity and a spirit of paternal kindness to that peo- 
ple. Fidl of such expressions as these, " I have no motive, my 
friends, to deceive you. 1 am sincerely desirous to promote your wel- 
fare." He then presents to them the outline of the treaty which he 
intended to propose to them. Amongst other stipulations are the fol- 
lowing : 

'' For the removal at the expense of the United States of your whole 
people, for their subsistence for a year after their arrival in their new 
country, and for a gratuity of one hundred and fifty dollars to each 
person." 

For the usual supply of rifics and blankets. 

In a subse(|uent part of the same letter, he says : ^' The total amount 
is four millions five hundred thousand dollars,*which added to the sun^ 
of .<i<500,000, the estimated value of the additional lands granted you, 
will be five millions, a sum which, if e(|ually divided amongst all your 
people, east of tlie Mississippi, estimating them at ten thousand, will 
give .^500 to every man, woman, and child in the nation." 

Geneial Jackson was mistaken as to the niunber of the Cherokees, 
but it would have given at least ijtiSOO to each individual, instead of four 



dollars, whicii is all (liat they will receive. How has this happened? 
Why, because the Government of the United Stales, after exiiausting 
appropriations made for the payment of claims of various kinds and 
the expenses of removal and subsistence, has used this treaty fund, not 
only without the authority of the Oherokees, but in violation of their 
remonstrances and of treaty stipulations. This letter of General Jack- 
son, no doubt iniluenced those of the Oherokees who consented to the 
treaty, JNo one of its [)romises has been complied with. Would not 
a court of chancery inider the circumstances rescind the contract, or 
decree that all these promises should be fulfilled ? 

In all other cases, where Indian tribes have been removed, it lias 
been done at the cost of the United States over and above the price or 
equivalent for their lands. Such was the fact with the Chocfaws, 
the Creeks, the Seminoles, and what is still more to the point, with the 
western Oherokees, who emigrated subsequent to the treaty of 1817, 
and of the treaty party who emigrated after the treaty of 1835. What 
ground is there for a discrimination against the great body of the na- 
tion, who now ask the same allowance? It cannot be said that these 
expenses were taken into consideration by the Senate, in fixing the va- 
lue of the Oherokee lands, for the reverse has been shown to be the 
truth. The first article of the treaty recites nothing as relinquished 
but the lands and spoliation claims, if the Senate so decide. In the 
13th article this fund is referred to as " the consideration money allow- 
ed the Oherokees for their claims for spoliations and the cession of their 
lands." 

The 15ih article of this treaty, which provides for the ultimate distri- 
bution of the treaty fund, does include removal and subsistence among 
the charges to be made upon this fund. This article is not what may 
be called one of the granting articles. It only prescribes the disposition 
of the fund. It may, therefore, fairly be supposed, that the Oherokees 
who signed the treaty did not notice, as their attention was not likely to 
be called to it, and that it was overlooked both in signing and in draw- 
ing the treaty, which carries on its face the evidence of carelessness and 
want of skill in drawing it up. But that it was not intended to charge 
the treaty fund with these classes of charges, is proven by the fact, that 
spoliations are amongst the charges named, when the same treaty sub- 
mits to the Senate to decide whether spoliation claims were included in 
their award, and it was decided that they were not. 

The Secretary of War did not so consider it, or he would not have 
said that he had only $39,000 applicable to the purpose of removal 
when the treaty fund of four millions was untouched ; and, lastly, Con- 
gress would not have made the appropriation on the 12ih of June, 1838 
of $1,047,000, if it had been considered that the treaty fund was sub- 
ject to these charges ; such an interpretation would abrogate the 8th 
article. The terms of that article are express, clear, unequivocal, and 
cannot be controlled by implication, even if there were any such im- 
plication, which there is not, but directly the reverse, both from the 
justice of the case and the uniform practice of the Government. But 



this is not all . Uy the treaty of lS2S,\vliicIi expressly recites that it was 
made in conleinplalioii .i)f, and with a view to, the emigration of the 
whole Cherokee nation, it is provided ihat the expense of removal and 
of one year's siihsistonce shall he paid by the United Slates. If all or 
any ponion of the Ciierokees had emi<Traled prior to the treaty of 29ih 
December. 1S35. the United Slates was bound to pay the expense of 
removal ami subsistence. This is still a subsisting treaty obligation, 
and as binding as if the treaty of 1835 had never been mode. Because 
this provision is not abrogated expressly or by implication by that treaty. 
On the conirary, as I have shown, the same provision is repealed in the 
last treaty. Nay, more; the ITlh arlicie of thelrealy of 29ih Decem- 
ber, 1835, contains the following words : ''all siipulations in former 
treaties which have not been superseded or annulled by this, shall con- 
tinue in full force and virtue. The siipulations of the treaty of 1828, 
securing to the Cherokees payment for removal and one year's subsist- 
ence, were not annulled by the treaty of 1835, but reasserted, and there- 
fore remain in full force and virtue." Such has been the construction 
given to these treaties by the War Department. In a communication 
of Hon. C. A. Harris, Commissioner of Indian Afl'airs, addressed to B. 
F. Curry, dated ISili November, 183G, he uses the following language: 
*' I acknowledge the receipt of your letter of the 25th October last, and 
in reply have to observe, that 1 have taken the opinion of the Secre- 
tary of War, ad interim, upon the claim of the Cherokees for subsist- 
ence at the rate of it^33 33 each. The Secretary decides that the com- 
mutation may be paid at the rate above stated; but, at the same time, 
declares thai ihe allowance is made under the treaty of 1828, and not 
in pursuance of the final stipulations of the treaty of 1835." Thus we 
have the uniform decisions of the heads of the War Department that, 
imder the treaty of 1835, the Government of the United Stales was 
bound to pay these charges. That independent of the treaty of 1835, 
the same obligation existed under the Ireaiy of 1828. That the uniform 
practice of the Government in all similar cases was to pay the cost of re- 
moval and subsistence. That Congress took the same view of the sub- 
ject, and made two appropriations, supposing them sufficient; and that 
not until these appropriations were exhausted, has this fund ever been 
touched for these objects. It is true that General Scott, in his com- 
munications with the i^herokee govenmient, said to them that any sum 
which I he removal might cost over and above the rate of dollars 

each, would not be paid by the United Slates, but out of the treaty fund. 
The Cherokee government made no reply to these remarks of General 
Scott, either assenting to or denying them. It was only the expression 
of the opinion of General Scott, of the obligations of tlie Government 
under existing treaties, as to which the Cherokees entertained a difTerent 
opinion, and were willing to trust to their rights under treaty stipula- 
tions. But if these declarations of General Scott are to be used to cut 
the Cherokees off from any higher allowance than that for which he 
stipulates, surely they must equally avail to secure to the Cherokees that 
which he promised, and which has since been refused j that is, that the 



Government should pay the expense of removal as far as the sum of 
each . 
If the judgment of the Senate should nevertheless be adverse to the 
claim for tiie whole of the expenses of removal and subsistence, it is 
then submitted. that nothing shall be charged to the Cherokee fund be- 
yond the sum of .s20 for removal, and ^33 33 for one year's subsistence. 
If these charges were to be paid out of the Cherokee fund, and the sum 
fixed for the removal and subsistence of each Cherokee, the Government 
of the United States was the trustee of the Cherokee nation, and bound 
by all the obligations of a trustee ; and if the' trust fund has been wasted 
in improvident contracts, the trustee, and not the trust fund, must bear 
the loss. The sum of $1,047,000, has been added to the sum of 
$5,000,000, as stipulated in the treaty as the price of the land. This sum 
was appropriated to various purposes, spoliations, reservations, removal, 
subsistence, and debts of the nation. It cannot, therefore, be dedicated to 
a single purpose — that of removals and subsistence — but must be dis- 
tributed pro rata amongst each of the classes. But, if any one class 
has greater claims than another, it is claims for spoliations; for it was 
for such claims that the appropriation was first made. If so, not more 
than half that sum (!]^ 1,6 47 ,000) would be appropriated to the charges 
for removal and subsistence — which would leave more than two mil- 
lions thrown on the treaty fund of five millions. But, even if these 
appropriations are applied exclusively to removal and subsistence, and 
leaving all the olher classes of claims to be thrown on the treaty fund, 
tf)e account would sland thus — 

Amount of expenses of removal and subsistence - - $2,915,140 
Appropriations therefor, and for other purposes - - - 1,647,000 



Leaving a balance of 1 ,258,140 

to be thrown on the treaty fund, over and above all the other charges 
made upon that fund, amounting, in all, to nearly four millions of dol- 
lars. There are two facts which it is deemed important to state : 

1. That after the Cherokees were assembled, and announced them- 
selves ready to commence the march, they were detained by the order 
of the General in command more than a month, and at a cost of more 
than $308,000. Surely their funds will never be charged with this. 

The other fact is, that many of the Cherokees applied for the com- 
mutation provided by the treaty for those who would subsist themselves, 
and were refused, and forced to receive their rations in kind at a cost of 
more than double that sum. 

If no allowance is made the Cherokees for subsistence and removal, 
the result will be, that the great body of the nation will receive nothing 
per capita for their country, of which they were joint owners — allow- 
ances for improvements, for spoliations, reservations, debts of the na- 
tion, removal and subsistence, &c., will exhaust the fund, and the 
great mass of the nation will receive nothing. The report of the Com- 
missioner of Indian affairs only admits as due the Cherokees $184,- 
071 28^ — of this, not less than $100,000 has since been withdrawn for 
2 



/.^ 



10 

liie removal and siibsislencc of the Nortli Carolina Cherokees, so lliat 
not more than .>k81,000 will remain to be distributed amongst 17,000 
people, about five dollars each, instead of five hundred, as prom- 
ised by General Jackson. Anotlicr revolting inecjuality will be pre- 
sented; the Western Cherokees, less than one-third of the nation, 
will have a fund for distribution of ,v;419,T03 00 — whilst the re- 
maining two-thirds of the nation will only have a fund of $84,000— 
tliat is, the distributive share of each Western Cherokee will not be less 
than ^75, whilst the remaining two-thirds of the nation will only re- 
ceive five dollars each, and this as the price of a property in which all 
had a joint and equal interest. The Cherokees rely with confidence 
that the Senate of the United States will not come to such a conclusion 
unless coerced by the clear meaning of the terms of the treaty. It 
cannot do so without a perversion of the language used, a violation 
of the intention of the contracting parties, and the uniform usages of 
the CJovernment with other tribes, and with the Cherokees themselves, 
who have heretofore emigrated. 

On the subject of interest it cannot be necessary to say any thing. 
The Cherokees have repeatedly applied for what was due them, and 
have been as repeatedly refused. Their own debts have been drawing 
interest, and what is more, the Government of the United States has all 
the time been paying interest for money borrowed, and would have had 
(o pay iiuerest on as much more as the sum due the Cherokees, if it 
had not been improperly withheld. 

It is confidently believed that there is not a court of chancery in the 
world which would not sustain all the positions assumed in this argu- 
ment, and no less confidence is felt in the firmness and virtue of the 
American Senate. 

In conclusion, I beg leave respectfully to suggest, that if there be 
doubts upon any of the questions presented, the Cherokees arc entitled 
to the benefit of these doubts; sucli is the principle adopted by our Gov- 
ernment in the construction of all Indian treaties. 

Chief Justice Taney, whilst attorney general, in an opinion which he 
guve upon an Indian treaty, said: "In an instrument of this sort, made 
with such persons as the Choctaws, I do not think that strict and tech- 
nical rules of construction should be applied to it. It ought to be cx- 
poxuKkd liherallif, according to the intejit.''^ (Attorney General's 
Opinions, ])age ^'&3.) 

The Supreme Coml of the United Slates, in their decision in the case 
of Worccslcr vs. Tlie State of Georgia, say : ''The language used in 
treaties with Indians ought never to be construed to their prejudice. * 
* * * How the words of the treaty were understood by this unlet- 
tered people, (the Cherokees,) x^[\\c\ ihiwwhcw actual 'tneaning ^s\\on\f\ 
form the rule of construction." (() J^eters,page o76.) 

The Senate will not fail to consider how luiuh stronger arc the rea- 
sons for the adojiiioii of such a [irincipln in this case, where, having re 
peatcdly approached the regularly ur'^auized govermiient with proposi- 
tions for a cession of the territory, and al\\;i\ ; boon rejected — a small 



BD J. 4 8. 



//i/i 



11 

portion, less than onc-twcnlicth of the nation, and the least respectable 
portion of the population, without olTicial station or authority to treat — 
a paper was executed and called a treaty; and under that authority 
alone a feeble and virtuous people, and one advancing in the career of 
civilization with a rapidity and success without a parallel in history, 
were forced froni their homes and countt\', and driven into a wilder- 
ness. Indemnification for ])ast injuries no human power can afford. 
Pecuniary compensation they have a rioht to expect. Their last 
hope for that is in your honorable body. You have been selected by 
them as the final arbiters of (lucstions involving interests of vital im- 
portance to their people, and in which your own government is a party. 
Respectfully submitted by 

WADDY THOMPSON, 

Counsel for Cherokee Nation. 



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